Arizona v. United States: Criminalizing Failure to do the Impossible

The amicus briefs in the SB1070 case are as good and interesting as in any case I have seen.   They include briefs from states, members of Congress, and law enforcement authorities on both sides.  There is also  a brief from former Democratic and Republican cabinet secretaries opposing the law.

The Brief for the Leadership Conference on Civil and Human Rights and other groups was  written in part by NYU Law students who I had the privilege of chatting with by email when they were drafting it .  One important argument they advance, which I have not seen elsewhere, is that Section 3 of SB1070 criminalizes a failure to comply with a duty under the Immigration and Nationality Act which, under the intracacies of federal law, does not in fact exist. 

Section 3 makes it an Arizona crime to fail to register with the federal government as required under 8 U.S.C. 1302(a).  Failure to register as required is indeed a federal crime.  But it is not a crime which people who enter without inspection, that is, most undocumented immigrants, can commit.  This is because the statute directs the federal authorities to promulgate forms to carry out the registration program.   They have done so, but none of those forms are directed to, or appropriate for, undocumented people to fill out.  The forms (and thus the requirements) are all aimed at people entering the United States lawfully, or who have access to some path to lawful presence.  This has been clear at least since the Eisenhower Administration promulgated a list of registration forms aimed at lawful residents and visitors.

The United States could, of course, draft and make available a form for undocumented people, and anyone who willfully failed to file would be in violation of the law.  They have not done so, possibly because they regard it as unlikely that they would get many takers, and existing legal tools and penalties are sufficient to remove and punish those here without authorization.  In addition, 8 USC 1304(d)  requires the issuance of a receipt or other immigration document to anyone who registers.  If undocumented people were subject to registration, and could register, this section implies that they would, by so doing, become legal!

The brief's punch line: "Since EWIs will have no way to comply with this phantom registration requirement, Section 3 will criminalize their presence in this country.This is in direct conflict with Congress’s decision not to criminalize mere presence. All legislative proposals to criminalize mere presence have failed." 

This little jewel of an argument  makes clear what critics of the law have been saying from the beginning: States generally do not have the knowledge of immigration law to make these kinds of subtle policy choices.  When they blunder ahead anyway, their basic purpose is not to help carry out the federal program, but to go beyond it, to impose punishments, restrictions and requirements that Congress and the officials designated by Congress to carry out the law have chosen not to.